Different peer doctor's testimony acceptable

In New York’s no-fault insurance litigation, questions frequently arise about which expert witnesses can testify on behalf of insurance companies when defending denials of medical claims. A common scenario involves an insurance company having one doctor prepare a peer review report to deny coverage, but then wanting to use a different expert witness at trial to defend that denial decision.

This practice has generated considerable debate in the courts, with some judges questioning whether the testifying expert must be the same doctor who prepared the original peer review report. The issue touches on fundamental principles of expert witness testimony and the proper foundation required for such evidence. The distinction between the reviewing physician and the testifying physician raises questions about whether courts should require firsthand knowledge of the claim review process or permit experts to offer opinions based on records reviewed by others.

Insurance carriers face practical challenges when the physician who conducted the peer review becomes unavailable for trial due to scheduling conflicts, relocation, or other circumstances. Requiring the original reviewing physician to testify could create significant logistical burdens and potentially delay proceedings. Conversely, permitting substitute experts to testify raises concerns about whether those witnesses possess sufficient knowledge of the specific claim to offer reliable opinions on medical necessity.

The Appellate Term’s decision in Nova Chiropractic Services provides important clarification on this procedural question, addressing the scope of permissible expert testimony and the burden placed on plaintiffs to object when testimony exceeds appropriate boundaries. This ruling has implications for how both sides prepare their cases and handle expert witness disclosures in no-fault litigation.

Case Background

Nova Chiropractic Services brought an action against GEICO General Insurance Company to recover no-fault benefits for healthcare services rendered to an injured patient. GEICO denied the claims based on a peer review report concluding that the services lacked medical necessity. At trial, GEICO sought to present expert testimony supporting its denial, but the proposed expert witness was not the physician who had prepared the original peer review report upon which the denial was based.

The trial court apparently precluded GEICO’s expert from testifying, reasoning that only the physician who conducted the peer review could properly testify about the basis for denial. This ruling prevented GEICO from presenting expert testimony supporting its medical necessity defense, potentially undermining the carrier’s ability to sustain its denial. GEICO appealed to the Appellate Term, arguing that the expert testimony should have been admitted with appropriate limitations.

Jason Tenenbaum’s Analysis

Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co., 2018 NY Slip Op 51688(U)(App. Term 2d Dept. 2018)

“Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of claim form had been based, should have been permitted to testify as to his opinion regarding the lack of medical necessity of the services at issue (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154, 2012 NY Slip Op 50349 ). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see id.), it is plaintiff’s burden to make an appropriate objection in the [*2]event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report”

At the least the judges that were reversed have bee consistent.

Legal Significance

The Appellate Term’s decision establishes that insurance carriers may present expert testimony from physicians other than those who prepared the underlying peer review reports, subject to important limitations. This flexibility recognizes the practical realities of litigation while maintaining appropriate safeguards against unfair surprise or expansion of denial bases. By permitting substitute experts, courts acknowledge that medical opinions can be based on review of records and reports prepared by others, consistent with generally accepted expert testimony principles.

The decision places responsibility on plaintiffs to police the scope of expert testimony through timely objections. Rather than categorically excluding testimony from non-reviewing physicians, courts require plaintiffs to monitor whether experts exceed the boundaries established by the original peer review. This approach balances carriers’ need for witness flexibility with plaintiffs’ rights to know the specific grounds for denial and prepare responsive evidence. The framework requires active participation from both sides during trial proceedings.

Practical Implications

For insurance companies defending medical necessity denials, this ruling provides valuable flexibility in expert witness selection. Carriers need not limit themselves to the specific physician who conducted the peer review, allowing them to utilize experts with superior credentials, availability, or courtroom experience. However, carriers must ensure their testifying experts confine opinions to the grounds articulated in the original peer review reports. Expanding denial theories at trial through expert testimony risks objection and potential preclusion.

Healthcare providers challenging denials must prepare to object when defense experts venture beyond the documented basis for denial. Plaintiffs should obtain peer review reports through discovery and carefully compare those documents to expert testimony at trial. When experts introduce new theories or bases for denial not contained in the peer review, plaintiffs must make specific objections to preserve their rights. Failing to object during trial may waive challenges to expert testimony exceeding proper scope.

Key Takeaway

Insurance companies can use different expert witnesses to testify about peer review reports, even when the testifying expert didn’t prepare the original denial report. However, the testimony must remain within the scope of the original peer review findings. Plaintiffs bear the responsibility to object if the expert testimony strays beyond the documented basis for denial, similar to requirements for establishing proper foundation in other expert testimony contexts.

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